Debunking the myth that it’s OK for the Michigan GOP to ignore the constitution because “Dems did it, too”

Wrong is wrong, illegal is illegal

I have been writing about how Michigan House Republicans have been refusing to acknowledge Democrats’ request to have a roll call vote on whether or not to make a bill take “immediate effect” rather than wait until 90 days after the end of the legislative session. Our state constitution says that they can do this if 2/3 of the House votes for it. If 1/5 of the House asks, the vote must be by roll call.

Democrats have over 1/5 of the House.

Republicans do not have 2/3 of the House.

Because of this, they have been ignoring Democrats’ request for roll call votes because they know they do not have the votes for it. In doing so, they are violating the state constitution. The Democrats have sued and were issued a temporary restraining order to keep the Republicans from continuing their abuse of the state constitution. The Republicans, of course, wish to keep violating the state constitution so they have appealed.

In my piece from Friday titled Michigan Republicans have ILLEGALLY passed over 96% (546) of their bills under “immediate effect”, I talked about the revelation made on The Rachel Maddow Show that the House Republicans had been making nearly EVERY bill “immediate effect”. I made a mistake, however, in saying that this was done illegally for 546 of the bills. It’s only illegal if the Democrats request a roll call vote and they have not done this for all 546 bills.

Rachel Maddow got it a bit wrong herself. In her segment, she said “This is new in Michigan governance”. As it turns out, this isn’t the case. I have been in contact with someone (who asked to remain anonymous) who has spent a great deal of time in the Michigan legislature and they said this:

You’re definitely right to point out that the Republicans are violating the law with shady vote counting. But one thing to caution you about is that “immediate effect” largely pro-forma on almost everything. Not granting “immediate effect” has in the past been kind of like doing a filibuster in the US Senate prior to the last 10 years or so–something to do to put a brake on or slow down implementation of something you don’t like, but something done with great restraint so as to not completely gum up the works.

[There was a time when] the Republicans controlled both branches of the legislature, had a lock on the judiciary and Engler was governor. I can’t remember which bills, but a few times our members stuck together to deny “immediate effect” to something, at least one time to obviate some bill the Republicans passed (if I recall correctly) because it was addressing something that had to be done that year and wouldn’t matter after that year). But usually, even on really contentious issues, “immediate effect” was granted as a sorta kinda form of respect for the system.

Now, to be clear, not granting “immediate effect” usually came at a significant cost. If the Democrats denied “immediate effect” on something, the Republicans would tell the Democrats they would bring the bill up for “immediate effect” again and threaten the Democrats with not passing something the Democrats needed or wanted really badly and that the Republicans could live with or live without, like something that helped the big cities. So it might have been used more frequently had the Republicans not used it as a bargaining chip. But using it as a bargaining chip isn’t really that objectionable; it’s fairly standard legislative horse-trading. I mean, Democrats would sometimes deny “immediate effect” on something they didn’t care about but that the Republicans really needed in order to trade it for something else the Democrats wanted.

Yesterday, the Detroit News explained that, when they were in power, Democrats also made most of their legislation have “immediate effect”, as well.

House Democrats have sued the Republican majority over a procedural move to make bills become laws faster — a maneuver the Dems regularly used when they were in power.

In 2009, the Democratic majority got all but two of the 242 laws it passed to go immediately into effect after then-Gov. Jennifer Granholm signed them.

The next year, Granholm signed 383 laws passed by the House, 365 of which had an immediate-effect clause, Republicans said Friday.

And this, of course, is the crux of of the Republicans’ argument — that it’s okay for them to do this because others have. This is, however, not the point of the lawsuit at all. The point of the lawsuit is that Democrats have the right under the constitution to ask for the roll call vote and they are not being allowed to.

Here again is the photo I published last week of the Democrats trying in vain to be heard:


Click image for larger version. Image courtesy of Representative Jeff Irwin, used with permission.

If you want to see a more astonishing display, here’s the relevant bit of Rachel Maddow’s segment from last Thursday. Pay particular attention at 13:15:

See the hand pop up at 13:15? Follow the yellow arrow in this screenshot:

Hear the woman shout, “I ask for a roll call vote”? That’s Democrats trying to get recognized and to request a constitutionally-mandated role call vote, mandated when 1/5 of the House members request it. Again, so that we’re clear on this:

Democrats have over 1/5 of the House.

Republicans do not have 2/3 of the House.

Here’s Representative Jeff Irwin on MarkMaynard.com:

Our argument is that Michigan House Republicans have ignored our requests for an accounting of the votes under the terms provided by the state’s Constitution. Their argument is that the House can set it’s own rules and that one of our rules is that the Speaker has to call on you in order to make a proper motion. Since they have never called on us at the proper time and since they are never obligated to call on us whatsoever, there has been and could be no Constitutional violations. In effect, they’re arguing that House rules can be used to subvert or nullify Constitutional provisions.

To me, it could not be more clear that this is unjust. The people of our state voted for a Constitution that put certain limits on the power of the legislature. One of those important limitations is the 2/3rd super-majority required for immediate changes to the law. This sort of limitation on the power of the state is a core principle of American government that transcends partisanship. My hope is that the courts will recognize the fundamentals of the argument rather than the partisanship of the combatants.

So, when you hear people say “both sides have done it”, that’s only true for the actual frequent use of “immediate effect”. However, what is new is Republicans refusing to allow Democrats to be heard on the House floor and for them not to be allowed to have the constitutionally-protected roll call vote.

The argument that it’s okay because we have always done it this way is specious. If Republicans had put up a fuss about this, I would have supported their position. However, I cannot recall ever hearing them complain about this. To suggest that the Democrats shouldn’t be allowed to because they never did is absurd and so is the accusation that this is purely political. If the GOP didn’t like it, they should have made an issue about it. Their failure to do so then doesn’t take away the Democrats’ ability to do so now.

Here’s Jeff Irwin again:

Has this been done before? Yes. Violating the clear terms of the Constitution has become commonplace in the Michigan House of Representatives. The big difference now is that since the Senate follows the Constitution, there was always one chamber where immediate effect votes would be counted and extremely divisive bills would not earn immediate effect in the Senate.

Today, Michigan Republicans have a 2/3rds majority in the Senate as well as a simple majority in the House. Therefore, House procedure has a real impact on important issues and these procedural shenanigans have been used to cut children off of welfare and gay families off of health benefits, all with no meaningful time to plan a transition (for example).

Another difference that is important to me is that I’m new to the Michigan House and I’ve always thought this practice of declaring votes successful without any actual voting is bogus.

It is bogus and they have every right to have the temporary restraining order made permanent.

One more point on this. In my piece on Friday, I was pretty hard on the Democrats:

While my most white-hot ire at this is aimed at Michigan Republicans, I have to ask where the hell Michigan Democrats have been on this? What percentage of bills passed with immediate effect without a roll call vote was enough that they finally took action? How many laws passed this way were enough? 5? 6? A dozen? Why on earth are we just now hearing about this when 96.5% of the laws were passed this way? Why did it take 546 before this became a screaming headline?

It’s bad enough that we’re contending with an anti-democratic bunch of Republican zealots but when the only thing that stands between us and them is a House Democratic caucus that didn’t start making a fuss until this late in the game, our chances of prevailing look bleak. We count on them to tell us about these things. Our news media certainly isn’t doing it. Bloggers like me with day jobs can’t sit in the legislature day after day to monitor things. We rely on our Democratic legislators for this. And, in this case, they waited far too long to pull the emergency stop cable.

While I do believe they waited too long to sound the alarm on this, knowing that the frequent use of “immediate effect” is not unusual and that their going along with the Republicans on it was part of the political “horse trading” that is common in governments gives me a deeper understanding of why they didn’t react sooner. I’m pleased that they are making this an issue now and look forward to hearing their side of this on The Rachel Maddow Show on Monday night.

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  • CB_Demented

    “give a mouse a cookie ” in full effect,

  • kirke123

    example followed by example? hmmm, no one can follow the constitution.

    • http://eclectablog.com Eclectablog

      There hasn’t been any violations of the constitution until the Michigan Republicans started ignoring the Democrats’ request for a roll call vote. THAT is the entire point of this post.

      • kirke123

        OK, SO LACK OF 2/3 MAJORITY IS OK TO IGNORE CONSTITUTIONAL DEMAND?
        OK, DEMS HAVE RIGHT TO ASK FOR ROLE CALL, BUT WHY NOT REQUEST FOR EVERY VOTE? WHY NOW, THEY’VE BEEN DOING THIS ALONG?

        OBVIOUSLY A MANDATORY ROLL CALL VOTE SHOULD HAVE BEEN ENTERED IN CONSTITUTION .

    • cryingliberty

      Hardly. If the Dems, when they were in power, routinely ignored or ran roughshod over roll call votes or ignored clear rules designed to stop the kind of nonsense the Republicans are doing, then you might have a case. But as of right now, there’s no evidence that Democrats, when they had the majority, did this.

      If someone comes back and shows clear, SOLID evidence that the Democrats did this -repeatedly- and -routinely- in the manner that the Republicans presently are, then you might have a case to say that Democrats are just as guilty.

      As Chris points out in his reply below, there isn’t any violation of the Constitution until the Republicans started ignoring requests for roll call votes – a right that is clearly afforded them by the rules of the Michigan State Constitution.

      You don’t get to ignore the democratic process because it’s inconvenient. You don’t get to ignore the rights of your fellow Americans because you disagree with what they’re saying. To do so, in either case, is not representative of a democratically-elected government. It is dictatorship, plain and simple, whether by a single person or whether it’s by committee.

      • CB_Demented

         so it’s only a problem if it’s routinely done? It has to be repeated violations before it’s a bad thing?

        Or is it only a bad thing if someone complains about it?

      • kirke123

        THEN THE CONSTITUTION HAS NO REVELANCE? IM A PURE DEM, BUT IF THEY IGNORED THE CONSTITUTION THEN THEY ARE JUST AS GUILTY.
        OR PERHAPS THE CONSTITUTION WAS WRITTEN POORLY?
        BUT I DONT BUY YOUR EXPLENATION.

        AND WHAT IS THE FINE/PUNISHMENT FOR NOT FOLLOWING THE CONSTITUTION? OR ITS OK IF DEMS DID IT, SO NO PUNISHMENT?

        WHATS THE SENSE OF HAVING A CONSTITUTION IF IT IS NOT TO BE FOLLOWED BY EITHER PARTY?

  • ruidh

    It’s absolutely false that parliamentary procedure allows them to proceed to a vote when there is a member with a higher priority motion. The power of the chair is to recognize members in the order the chair desires — not the power to ignore higher priority motions.

    • cryingliberty

      I presume this is per Robert’s Rules of Order?

      I’m loosely familiar with it, but I don’t know a lot of the little details regarding proper parliamentary procedure.

      Of course, that makes me wonder: Even if what the Republicans were doing -wasn’t- against the State Constitution, would the Dems have a case (albeit a very minor one) to say that there are procedural rules being broken anyway simply because of Robert’s Rules?

  • Brian Steinberg

    Good reporting on this. 

    When I talked to a staffer of one of the Dem. Reps in the lawsuit, he gave me more or less the Horse trading story too. 

    But considering the outrage with highly contentious laws like the EFM, I have to ask why they did not try to fight on behave of Democratic voters by halting an immediate effect. 

    Like Rachel Maddow stated, only now in April 2012 would we see the enactment of the current EFM law if there was not an immediate effect. The EFM law would have most likely been tabled until the referendum ballet vote in Nov as a result of a petition drive.

    I am not saying halting immediate effect should be done with everything or even most bills, but with ones like the EFM, halting an immediate effect in effect using a Filibuster like strategy should be an option. 

    This is not a true filibuster because it only stalls a laws enactment and does not kill the bill entirely, which makes me think the Dems are a little full of it for giving in to this and not taking a stand for so long.

  • CB_Demented

    It sounds like the GOP is in the wrong here, but it also sounds like it’s a case of chickens coming home to roost. 

    It’s basically nearly impossible to find video evidence that the Democrats were doing the same thing the last time they were in control in Michigan. The only thing search engines will turn up is the current problem.

  • Mark Wagnon

    Here is a thread from State Representative (Doug Geiss-D), about what the Democrats were doing during this ‘Immediate Effect’ fiasco, where the Republicans in Michigan, are destroying the democratic process of our State Legislature: 

    The Republicans in the House have been ignoring the State Constitution.

    I (and my colleagues) have objected, in writing, on many occasions. 

    Here is an example from the March 28, 2012 House Journal:
    The Clerk received the following dissent from Rep. Byrum, Brunner, Stallworth, Segal, Switalski, Stapleton, Darany, Bauer, Lindberg, Rutledge, Smiley, Brown, Lipton, Bledsoe, Tlaib, McCann, Geiss, Santana, Constan, Hammel, Ananich, Oakes, Hobbs, Nathan, Barnett, Townsend, Liss, Stanley, Womack, Kandrevas, Howze, Talabi, Meadows, Irwin, LeBlanc and Lane:

    Article IV, Section 18 of the Michigan Constitution states that “[a]ny member of either house may dissent from and protest against any act, proceeding or resolution which he deems injurious to any person or the public, and have the reason for his dissent entered in the journal.” Under this constitutional provision, I demand this be printed in the House Journal because I object to the act of gaveling on Immediate Effect to SB412 and SB1018. I did not, have not, and do not support the granting of immediate effect to SB412 and SB1018.
    ——————————————————————————
    And here is his response to my query regarding the House Journal dissent, to the ‘new Emergency Manager bill’, passed with ‘immediate effect’ over a year ago… 

    ——————————————————————————There were a number of no vote explanations, but I think Rep. Kandrevas’ sums it up:Rep. Kandrevas, having reserved the right to explain his nay vote, made the following statement:“Mr. Speaker and members of the House:I vote NO on HB 4214 and SB 157 and SB 158 and protest the events that transpired on the floor today. Many good amendments were offered today, with the result being only one record roll call vote granted by the Majority Party on these amendments, and an utter disregard for demands by the requisite number of voting members for a record roll call vote on the question of Immediate Effect.”(FYI, PA 4 was HB 4214.)

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